Supplement No. 5 to Notes Collateral Agreement

Exhibit 10.5

Supplement No. 5 to Notes Collateral Agreement

SUPPLEMENT NO. 5 (this “Supplement”) dated as of May 21, 2018, to the Collateral Agreement, dated as of December 16, 2014 (as amended, amended and restated, waived, supplemented or otherwise modified from time to time, the “Collateral Agreement”), among XXXXXXXXXXXX COAL COMPANY, a Delaware corporation (the “Company”), each other subsidiary of the Company from time to time party thereto (each such subsidiary individually a “Subsidiary Guarantor” and collectively, the “Subsidiary Guarantors”; the Subsidiary Guarantors and the Company are referred to collectively herein as the “Grantors”) and U.S. BANK NATIONAL ASSOCIATION, as Notes collateral agent (together with any successor collateral agent, the “Notes Collateral Agent”).

Reference is made to the Indenture dated as of December 16, 2014 (as amended, amended and restated, waived, supplemented or otherwise modified from time to time, the “Indenture”), among the Company, the Subsidiary Guarantors and U.S. Bank National Association, as Trustee and Notes Collateral Agent.

Capitalized terms used in this Agreement and not otherwise defined in this Agreement shall have the meanings assigned to such terms in the Indenture and the Collateral Agreement referred to therein.

Section 4.16 of the Indenture and Section 7.14 of the Collateral Agreement provide that additional Subsidiaries of the Company may become Grantors under the Collateral Agreement by execution and delivery of an instrument in the form of this Supplement. The undersigned Subsidiaries (the “New Subsidiaries” and each a “New Subsidiary”) are each executing this Supplement in accordance with the requirements of the Indenture to become a Grantor under the Collateral Agreement.

Accordingly, the Notes Collateral Agent and the New Subsidiaries agree as follows:

In accordance with Section 7.14 of the Collateral Agreement, each New Subsidiary by its signature below becomes a Grantor under the Collateral Agreement with the same force and effect as if originally named therein as a Grantor, and such New Subsidiary hereby (a) agrees to all the terms and provisions of the Collateral Agreement applicable to it as a Grantor thereunder and (b) represents and warrants that the representations and warranties made by it as a Grantor thereunder are true and correct in all material respects on and as of the date hereof (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date). In furtherance of the foregoing, each New Subsidiary, as security for the payment and performance in full of the Notes Obligations (as defined in the Collateral Agreement), does hereby create and grant to the Notes Collateral Agent, its successors and assigns, for the ratable benefit of the Secured Parties, their successors and assigns, a security interest in and lien on all such New Subsidiary’s right, title and interest in and to the Collateral (as defined in the Collateral Agreement) of such New Subsidiary. Each reference to a “Grantor” in the Collateral Agreement shall be deemed to include the New Subsidiaries. The Collateral Agreement is hereby incorporated in this Agreement by reference.

Each New Subsidiary represents and warrants to the Notes Collateral Agent and the other Secured Parties that this Supplement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally any by principles of equity.

This Supplement may be executed in counterparts, each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Supplement shall become effective when the Notes Collateral Agent shall have received a counterpart of this Supplement that bears the signature of each New Subsidiary and the Notes Collateral Agent has executed a counterpart hereof. Delivery of an executed signature page to this Supplement by facsimile transmission shall be as effective as delivery of a manually signed counterpart of this Supplement.

Each New Subsidiary hereby represents and warrants that set forth under its signature hereto is, as of the date hereof, (i) the true and correct legal name of such New Subsidiary, (ii) its jurisdiction of formation, (iii) its Federal Taxpayer Identification Number or its organizational identification number (if any) and (iv) the location of its chief executive office. Each New Subsidiary hereby further represents and warrants that, as of the date hereof, Schedule I hereto accurately sets forth all information which would have been required pursuant to the Schedules to the Collateral Agreement had such New Subsidiary been a Grantor on the date of the execution and delivery of the Collateral Agreement (it being understood and agreed, however, that the information so furnished by such New Subsidiary is accurate as of the date of this Supplement rather than the date of the Collateral Agreement).

Except as expressly supplemented hereby, the Collateral Agreement shall remain in full force and effect.

THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

Any provision of this Supplement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof and in the Collateral Agreement; the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

All communications and notices hereunder shall be in writing and given as provided in Section 7.01 of the Collateral Agreement.

The New Subsidiaries agree to reimburse the Notes Collateral Agent for its reasonable out-of pocket expenses in connection with this Supplement, including the reasonable fees, other charges and disbursements of counsel for the Notes Collateral Agent.

The New Subsidiaries and the Collateral Agent have duly executed this Supplement No. 5 to the Notes Collateral Agreement as of the day and year first above written.

SAN XXXX COAL COMPANY
By:		/s/ Xxxxxx X. Xxxxxxx
Name:		Xxxxxx X. Xxxxxxx
Title:		Secretary
		Legal Name: San Xxxx Coal Company
		Jurisdiction of Formation: Delaware
SAN XXXX TRANSPORTATION COMPANY
By:		/s/ Xxxxxx X. Xxxxxxx
Name:		Xxxxxx X. Xxxxxxx
Title:		Secretary
		Legal Name: San Xxxx Transportation Company
		Jurisdiction of Formation: Delaware
XXXXXXXXXXXX SAN XXXX, LLC
By:		/s/ Xxxxxx X. Xxxxxxx
Name:		Xxxxxx X. Xxxxxxx
Title:		Secretary
		Legal Name: Xxxxxxxxxxxx San Xxxx, LLC
		Jurisdiction of Formation: Delaware
XXXXXXXXXXXX SAN XXXX HOLDINGS, INC.
By:		/s/ Xxxxxx X. Xxxxxxx
Name:		Xxxxxx X. Xxxxxxx
Title:		Secretary
		Legal Name: Xxxxxxxxxxxx San Xxxx Holdings, Inc.
		Jurisdiction of Formation: Delaware

[Signature Page to Supplement No. 5 to Notes Collateral Agreement]

XXXXXXXXXXXX POWER, INC.
By:		/s/ Xxxxxx X. Xxxxxxx
Name:		Xxxxxx X. Xxxxxxx
Title:		Secretary
		Legal Name: Xxxxxxxxxxxx Power, Inc.
		Jurisdiction of Formation: Delaware
XXXXXXXXXXXX CANADA LLC
By:		/s/ Xxxxxx X. Xxxxxxx
Name:		Xxxxxx X. Xxxxxxx
Title:		Secretary
		Legal Name: Xxxxxxxxxxxx Canada LLC
		Jurisdiction of Formation: Delaware
XXXXXXXXXXXX ENERGY SERVICES, INC.
By:		/s/ Xxxxxx X. Xxxxxxx
Name:		Xxxxxx X. Xxxxxxx
Title:		Secretary
		Legal Name: Xxxxxxxxxxxx Energy Services, Inc.
		Jurisdiction of Formation: Delaware
BASIN RESOURCES, INC.
By:		/s/ Xxxxxx X. Xxxxxxx
Name:		Xxxxxx X. Xxxxxxx
Title:		Secretary
		Legal Name: Basin Resources, Inc.
		Jurisdiction of Formation: Colorado

[Signature Page to Supplement No. 5 to Notes Collateral Agreement]

XXXXXXXXXXXX CANADIAN INVESTMENTS L.P.
By: Xxxxxxxxxxxx Canada LLC, in its capacity as general partner of XXXXXXXXXXXX CANADIAN INVESTMENTS L.P. / XXXXXXXXXXXX INVESTISSEMENTS CANADIENS S.E.C.
By:		/s/ Xxxxxxxx X. Xxxxxxx
Name:		Xxxxxxxx X. Xxxxxxx
Title:		Vice President and Secretary
Legal Name: Xxxxxxxxxxxx Canadian         Investments L.P.
Jurisdiction of Formation: Quebec

ABSALOKA COAL, LLC
By:		/s/ Xxxxxx X. Xxxxxxx
Name:		Xxxxxx X. Xxxxxxx
Title:		Secretary
Legal Name: Absaloka Coal, LLC
Jurisdiction of Formation: Delaware

U.S. BANK NATIONAL ASSOCIATION, as Notes Collateral Agent
By:		/s/ Xxxxx Xxxxxx
Name:		Xxxxx Xxxxxx
Title:		Vice President

[Signature Page to Supplement No. 5 to Notes Collateral Agreement]

Schedule I

to Supplement No. 5

to the Notes

Collateral Agreement

Supplement to Schedule 3.03 to Notes Collateral Agreement

PLEDGED SECURITIES

Pledged Stock

Name of Pledgor		Name, Jurisdiction of Formation and Type of Entity of Pledged Subsidiary		Class or Type of Pledged Interest		Total Amount of Class or Type of Pledged Interests Authorized		Total Amount of Class or Type Outstanding		Total Amount Pledged				Certificate Number (if applicable)
Xxxxxxxxxxxx Coal Company		Xxxxxxxxxxxx San Xxxx Holdings, Inc.; Delaware; corporation		Common		100		100			100	%		Uncertificated
Xxxxxxxxxxxx San Xxxx Holdings, Inc.		Xxxxxxxxxxxx San Xxxx, LLC; Delaware; limited liability company		Membership Units		N/A		N/A			100	%		Uncertificated
Xxxxxxxxxxxx San Xxxx, LLC		San Xxxx Coal Company; Delaware; corporation		Common		250		250			100	%		4
Xxxxxxxxxxxx San Xxxx, LLC		San Xxxx Transportation Company; Delaware; corporation		Common		200		200			100	%		3
Xxxxxxxxxxxx Energy Services New York, Inc.		Basin Resources, Inc.; Delaware; corporation		Common		100		100			100	%		1
Xxxxxxxxxxxx Coal Company		Xxxxxxxxxxxx Canada, LLC; Delaware; limited liability company		Sole Member		N/A		N/A			100	%		Uncertificated
Xxxxxxxxxxxx Coal Company		Xxxxxxxxxxxx Power, Inc.; Delaware; corporation		Common		1,000		1,000			100	%		1
Xxxxxxxxxxxx Coal Company		Xxxxxxxxxxxx Energy Services, Inc.; Delaware; corporation		Common		100		100			100	%		1
WRI Partners, Inc.		Absaloka Coal, LLC		Sole Member		N/A		N/A			100	%		Uncertificated

I-1

Supplement to Schedule 4.02(b) to Notes Collateral Agreement

GRANTOR LEGAL NAME

COMPANY NAME		F/K/A		DATE OF NAME CHANGE		TRADE NAMES
Xxxxxxxxxxxx San Xxxx Holdings, Inc.		WLB Escrow Corporation		January 26, 2016		None
Xxxxxxxxxxxx San Xxxx, LLC		N/A		N/A		None
San Xxxx Coal Company		N/A		N/A		None
San Xxxx Transportation Company		N/A		N/A		None
Basin Resources, Inc.		X/X		X/X		Xxxx
Xxxxxxxxxxxx Xxxxxx LLC		N/A		N/A		None
Xxxxxxxxxxxx Power, Inc.		N/A		N/A		None
Xxxxxxxxxxxx Energy Services, Inc.		N/A		N/A		None
Xxxxxxxxxxxx Canadian Investments, LP		N/A		N/A		None
Absaloka Coal, LLC		N/A		N/A		None

I-2

Supplement to Schedule 4.02(d) to Notes Agreement

GRANTOR ORGANIZATIONAL INFORMATION

COMPANY NAME		JURISDICTION		TYPE		ORG ID		OFFICE ADDRESS		TAX PAYER ID
Xxxxxxxxxxxx San Xxxx Holdings, Inc.		Delaware		Corporation		5857903		300 Road 0000 Xxxxxxxx Xxxxxx X Xxxxxxxxx, XX 00000		00-0000000
Xxxxxxxxxxxx San Xxxx, LLC		Delaware		Limited Liability Company		5948312		300 Road 0000 Xxxxxxxx Xxxxxx X Xxxxxxxxx, XX 00000		00-0000000
San Xxxx Coal Company		Delaware		Corporation		0867351		300 Road 0000 Xxxxxxxx Xxxxxx X Xxxxxxxxx, XX 00000		00-0000000
San Xxxx Transportation Company		Delaware		Corporation		0928266		300 Road 0000 Xxxxxxxx Xxxxxx X Xxxxxxxxx, XX 00000		00-0000000
Xxxxxxxxxxxx Power, Inc.		Delaware		Corporation		3357469		0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000		00-0000000
Xxxxxxxxxxxx Energy Services, Inc.		Delaware		Corporation		5371511		0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000		00-0000000
Xxxxxxxxxxxx Canada LLC		Delaware		Limited Liability Company		5509777		0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000		00-0000000
Basin Resources, Inc.		Colorado		Corporation		19871331143		0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000		00-0000000
Absaloka Coal, LLC		Delaware		Limited Liability Company		4554164		000 Xxxxx Xxxxx Xxxx, Xxxxxx, XX 00000		00-0000000
Xxxxxxxxxxxx Canadian Investments, LP		Quebec		Limited Partnership		3369975407		1100, 00000 00 Xxxxxx Xxxxxxxx, Xxxxxxx Xxxxxx, X0X 0X0		00-0000000

I-3